American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Winter 1998
© American Bar Association. All rights reserved.

Legal Ethics

BY MARTIN PASKIND

Martin Paskind is a lawyer in Albuquerque, New Mexico. His practice focuses on the representation of small businesses and their owners.

Lots of people tell lawyers what to do. We work for clients, who demand and direct; for supervisors who do that but more so; and for senior partners who, like generals, do not expect the troops to argue orders. G. Paul Howes spent about nine years finding out what happens to lawyers when orders and ethics conflict.

In 1988, Howes was a prosecutor for the U.S. Attorney for the District of Columbia. Though he practiced in D.C., only New Mexico licensed him as a lawyer. A federal statute allows lawyers employed by the Department of Justice to practice anywhere. Howes chased criminals in the Superior Court of the district, which is a federal court.

Howes got the case of Darryl Smith, charged with murder. Smith gave police a videotaped statement admitting that he was on the scene, but he claimed that someone else did the actual killing. The cops jailed Smith.

Difficult Defenses

The court appointed a public defender named Jaime Gardner to defend him. Smith proved hard to defend. Without his lawyer's knowledge, he repeatedly called the detective in charge of the investigation.

At the time, Howes had no experience with defendants who called detectives about their own cases. The chief of the felony section of the U.S. Attorney's office and Howes worked out rules. The detective, they said, could listen to what Smith had to say andtake notes. But the officer couldn't ask questions or contact Smith in jail. The prosecutors didn't discuss whether to tell defensecounsel what was going on.

Gardner, the public defender, learned what was happening during Smith's preliminary hearing. Gardner asked the court to stop police and prosecutors' contacts with Smith without her permission. The judge refused to do that. He suggested that Gardner simply advise the defendant to keep quiet.

Please Shut Up!

No doubt Gardner read the riot act to Smith, who nevertheless seemed determined to hang himself. Smith talked to the detective about his own case, and about two others in which he wasn't charged. No one told Gardner. This made it hard for Gardner to defend her client. The police knew more about Smith than she did.

Perhaps thinking to enlarge his audience, Smith about three months after his arrest began calling Howes directly. The detective, who happened to be in Howes' office, listened in. The prosecutor told Smith that his lawyer would not be pleased. Smith called a second time that day, and the same thing happened.

Howes discussed all this with his supervisor. The two worried about getting Smith's information into evidence. They told the detective to take a partner and visit Smith in jail. They directed the cops to give Miranda warnings before questioning Smith. Mirandized and faced with two detectives, Smith momentarily clammed up.

No one, however, said anything to Gardner, who thought her client was safely in the slammer, keeping his mouth shut. But the defendant did not stay clammed for up long. Howes took four more calls from Smith. The prosecutor didn't ask questions, but he listened to what the defendant had to say.

Ultimately, Smith was indicted. The PD moved to dismiss the indictment because of prosecutorial misconduct. The judge denied the motion, but reported Howes to the District of Columbia Board of Professional Responsibility. Because the D.C. authorities hadn't licensed Howes in the first place, they sent the complaint to the Disciplinary Board of the New Mexico Supreme Court.

Nine Long Years

Remember, all this happened in 1988. For the next nine years, DOJ lawyers fought Howes' disciplinary charges in state and federal courts. They said that the DOJ was a big, important government agency, and if the feds approved Howes' conduct, that should be that.

New Mexico, like other states, has an ethical rule that says, "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The rule stems from the right to counsel, which wouldn't mean much if lawyers went behind each others' backs whenever they pleased.

New Mexico, which for the most part follows the ABA's Model Rules, also has a provision dealing with responsibilities of subordinate lawyers. The first part of the rule says lawyers are "bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person." This rule did not do much for Howes's defense.

Just Following Orders

In the next paragraph, however, the rules say that, "A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty."

That part of the rule boils down to the idea that conduct is OK if a superior government officer approves or orders it. During the late 1940s, Nazi war criminals on trial for their lives at Nuremberg raised much the same defense. "We were," they said, "just following orders." That defense didn't work at Nuremberg.

Howes raised a two-part defense. The first was that he simply did what he and his supervisor agreed to do. The second factual defense arose from what ultimately became known as the Thornburgh Memorandum. Dick Thornburgh, Attorney General under President Bush, spelled out in 1989 that federal prosecutors are free to talk with defendants outside the presence of defense counsel. Howes claimed that both parts protected him, because he was following orders.

The Thornburgh Memorandum generated a spate of articles, pro, con, and wishy-washy, from 1990 to the present time. Justices got rid of the Thornburgh Memorandum by noting that it didn't come along until a year or so after Howes' violations of the rule. Even if the court were to take account of the Thornburgh memo and its rules, said the justices, neither Howes nor his supervisor discussed notifying the PD. They were far more worried about getting Smith's statements into evidence.

New Mexico's Supreme Court said, "When others are involved in misconduct, degrees of culpability may vary, but ultimate responsibility does not."

The court went on to say, "Counsel simply cannot delegate to others their own duty to act responsibly." Added the justices, "In the end, each member of the bar is an officer of the court. His or her first duty is not to the client or the senior partner, but to the administration of justice." Nor, said the New Mexico court, can any employer, even the U.S. Department of Justice, declare that a rule of lawyers' conduct should not apply because it would be too great a burden for prosecutors to handle.

I think New Mexico's justices showed some class on this one. Still, the debate about DOJ lawyers and states' ethical rules rages on. I don't see a solution that will give the department what it wants. Courts license lawyers; administrative bodies do not.

So New Mexico lawyers, along with those all over the country, cannot go behind the backs of other lawyers and deal with opposing parties directly. Noting that "he refuses to this day to accept or even recognize the nature of his conduct," the court publicly censured Howes and taxed costs of about $8,600.

Lawyerly Independence

I don't mean to suggest that Howes was guilty of the sort of conduct carried out by senior officials of the National Socialist Party in wartime Germany. That is obviously not true.

Nevertheless, we live and practice in a society of huge bureaucracies, whether governmental or corporate. Such organizations by their nature make decisions based on convenience, not humanity or ethics. In G. Paul Howes's case, the New Mexico Supreme Court came down hard on the side of professional independence. The justices reminded us all that the Nuremberg defense will not work for lawyers. We can't let clients, bosses, or anyone else tell us what to do.

The court spoke with the hope that lawyers "already appreciate the importance of their professional obligations...We trust that for most, if not all...lawyers, this opinion discusses no new legal principle. Nonetheless, this opinion will serve to affirm that our rules apply to all New Mexico lawyers, wherever they practice, and that we intend to continue to enforce our rules."

The case was In the Matter of G. Paul Howes, Esq., 36:25 N.M. Bar Bulletin (June 19, 1997).

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